Ramsay v. South Lake Hospital, et al—(C.J. Lambert; 5DCA; 2/17/23).
This pro se civil litigant lost at the trial and appellate level, but the Fifth DCA saw fit to write 14 pages in the case.
In 2016, Ramsay was in a motor vehicle accident, and she was taken to the ER at South Lake Hospital. She was discharged a few hours later, with the ER doctors telling her that her pain was from arthritis.
Ramsay went to a different medical facility three days later, where those doctors diagnosed her with numerous fractures in her back.
In 2020, Ramsay filed a pro se complaint alleging “negligence” against South Lake. The hospital moved to dismiss, but the court gave her an opportunity to amend.
In the amended complaint, Ramsay named two of the South Lake ER doctors as additional defendants, and she continued to allege, essentially, medical negligence/malpractice for failing to properly diagnose her.
There is a small wrinkle. In addition to basic medical negligence, she alleged a violation of section 395.1041, Fla. Stat, a statute on the right to access to emergency services and care. Subsection (5)(b) of that statute, however, provides that
- Neither the hospital nor its employees, nor any physician…shall be liable in any action arising out of a refusal to render emergency services or care if the refusal is made after screening, examining, and evaluating the patient, and is based on the determination, exercising reasonable care, that the person is not suffering from an emergency medical condition….
South Lake and one of the doctors moved to dismiss the amended complaint, alleging that it was just a medical malpractice claim, and it was barred under the statute of limitations because it had not been filed within 2 years of the accident or even within the 4-year statute of repose. The other doctor also moved to dismiss for an additional basis, arguing that even if the section 395.1014 claim was deemed separate from a medmal claim, she was still past the four-year statute of limitations for an action based on statutory liability under section 95.11(3)(f). The doctor was sued nearly six years after the ER visit.
Ramsay admitted that her claim was filed after the 2-year point, but argued that her claims against the doctors related back to the filing of the initial complaint, which was filed prior to the 4-year mark.
The trial court dismissed all claims with prejudice.
On appeal, the DCA affirmed on the statute of limitations for the statutory cause of action. Adding a new defendant does not relate back unless it is merely correcting a misnomer.
In regard to the medmal cause of action, that, too, was barred by the statute of limitations. Her allegations required showing that the doctors breached the professional standard of care, so it was proper to treat it as a medical malpractice claim subject to the presuit notice provisions and the twoyear statute of limitations. The complaint was filed within the four-year statute of repose under section 95.11(4)(b), but she never complied with the presuit requirements of chapter 766. Dismissal with prejudice was proper because it is too late now to comply with the presuit requirements in light of the statutes of limitations and repose. Affirmed.
Terry P. Roberts
Director of Appellate Practice Fischer Redavid PLLC